Argued and Submitted: July 31, 2014.
Yamhill County Circuit Court. MI110529. John L. Collins, Judge.
Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie K. Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Ortega, Judge, and Garrett, Judge.[*]
[266 Or.App. 514] DEVORE, P. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. Defendant raises assignments of error related to the trial court's direction that she submit to a test in court to check for a natural or resting nystagmus. She challenges a ruling that permitted the state to request an officer to perform the test during trial, an instruction to the jury stating that defendant did not have a constitutional right to refuse the test, and the denial of her motion for a mistrial after she refused to submit to the test. Among other things, defendant argues that the proposed test in court constituted an unconstitutional search, that the instruction was incorrect, and that to tell the jury that she refused the test violated her right against self-incrimination. Because we agree with the first two arguments, we need not reach the last one. We review a trial court's legal conclusions regarding the constitutionality of a search for legal error. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993); State v. Coffer, 236 Or.App. 173, 175, 234 P.3d 1082 (2010). We reverse and remand.
The facts relevant to the appeal are undisputed. Just before 11:00 p.m., Officer Powell saw defendant run a red light and pull into a grocery store's parking lot. Defendant left her car and was walking toward the store when Powell confronted her. He noticed that defendant smelled moderately of alcohol and had glassy eyes. She admitted that she had been drinking beer recently at a couple of taverns and that she had started drinking at about 4:45 p.m. Defendant agreed to perform field sobriety tests (FSTs). Before conducting the tests, Powell asked defendant whether she had any existing medical issues, and she did not report any eye-related disorders or problems. In the course of the tests, Powell administered a horizontal gaze nystagmus (HGN) test. For that test, he instructed defendant to focus on a [266 Or.App. 515] stimulus held about a foot from a spot slightly above her eyes and to follow the movement of the stimulus without moving or turning her head. He observed four of six possible indicators of intoxication in the course of that test. Defendant fared poorly on other field sobriety tests, as well. Powell arrested defendant for
DUII and brought her to the police station. An Intoxilyzer recorded her blood-alcohol content (BAC) as 0.12 percent.
At trial, Powell testified that he had administered " [h]undreds" of HGN tests and that, while conducting the test, it is standard practice to check for a resting or a natural nystagmus. He explained, " Some people have nystagmus * * * even when they haven't drank alcohol, it's slight but you can see it." Powell testified that he checked for a visible resting or natural nystagmus in the course of his investigation, as he does routinely in all similar investigations. To check for a resting or a natural nystagmus, Powell explained, he holds out a stimulus and observes the subject's eyes while the subject visually focuses on the stationary stimulus. During cross-examination, defense counsel questioned Powell about the omission of HGN testing procedure in his field notes, observing that his notes and the police report did not " contain any information about conducting the resting nystagmus [test]." On redirect, Powell testified again that he had checked defendant for the presence of any visible natural or resting nystagmus before conducting the rest of the HGN test. The state, nonetheless, asked Powell to check defendant at that time to see if she had a resting nystagmus.
Defense counsel objected to the state's request and, among other things, contended that a " [p]hysical characteristic not otherwise easily observable requires a warrant based on probable cause[.]" The trial court overruled the objection, advised that it could compel defendant to comply and indicated that, if defendant refused to allow Powell to look for a resting nystagmus, " that would be something [that the state] can comment on[.]"  The state repeated its request [266 Or.App. 516] that defendant allow Powell to observe whether defendant had a visible nystagmus. Defendant again objected, refused to submit to such observation, and moved for mistrial. The state asked that the court instruct the jury that defendant does not have a right to refuse the test. The court overruled defendant's objection in front of the jury, stating that " defendant doesn't have a constitutional right not to participate because it is not testimonial evidence. * * * However, I am not going to force her to participate in the evaluation." The court denied defendant's motion for mistrial.
On appeal, defendant assigns error to the trial court's ruling, arguing that the proposed test for a resting or natural nystagmus constituted a search, that the court could not lawfully compel defendant to submit to the test, and that the choice to either consent to the search or to refuse to consent before the impaneled jury amounted to a violation of her right against self-incrimination. The state responds that the court did not err in directing defendant to submit to the test because the test would not constitute a search insofar as defendant would not have been compelled to do an unusual act nor reveal information not otherwise available to the public. Since there was no search, in the state's view, there was no need for a warrant or ...